JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: YAP -v- MATIC [2022] WASC 181
CORAM: SOLOMON J
HEARD: 12 APRIL 2022
DELIVERED : 23 MAY 2022
FILE NO/S: CIV 1106 of 2022
BETWEEN: VIVIEN JIT SIEN YAP
First Plaintiff
EMPIRE SONS (AUSTRALIA) PTY LTD T/AS RAY WHITE (DALKEITH CLAREMONT)
Second Plaintiff
AND
SANDI MATIC
Defendant
Catchwords:
Interlocutory injunction - Maintenance of interim injunctive orders - Quia timet injunction - Tort of interference with business by unlawful means - Tort of interference with contractual relations - Tort of intimidation - Tort of injurious falsehood - Tort of defamation - Contempt of court - Compliance with O 55 r 5
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
The orders granting interim injunctive relief are continued as amended
The first plaintiff's application for committal of the defendant is adjourned
Category: B
Representation:
Counsel:
| First Plaintiff | : | M L Bennett |
| Second Plaintiff | : | M L Bennett |
| Defendant | : | In Person |
Solicitors:
| First Plaintiff | : | Bennett + Co |
| Second Plaintiff | : | Bennett + Co |
| Defendant | : | Not Applicable |
Case(s) referred to in decision(s):
Agustin-Bunch v Smith [2021] VSC 158
Allbeury v Corruption and Crime Commission [2012] WASCA 84; 42 WAR 425
Australian Broadcasting Corporation v O'Neill [2006] HCA 46
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Caratti v Boban Pty Ltd (Administrators Appointed) [No 2] [2015] WASC 139
Carew-Reid & Ors v Carew Corporation Pty Ltd (Unreported, WASC, Library No 930254, 23 April 1993)
Deepcliffe Pty Ltd v Council of the City of Gold Coast [2001] QCA 342
Donaldson v Natural Springs Australia [2015] FCA 498
Fu v Winstar Group Pty Ltd [2014] WASC 496 [12].
Fu v Winstar Group Pty Ltd [No 3] [2020] WASC 222
Graham v Powell (No 4) [2014] NSWSC 1319
Hardy Finance Corporation v Ahern [No 3] [2010] WASC 403
Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) and Computer Accounting and Tax Pty Ltd (in liq) [No 3] [2021] WASC 447
Ooranya Pty Ltd v ISPT Pty Ltd [2018] WASC 256
Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (1998) 82 IR 87
Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126
Porter v Steinberg [2019] WASC 291
R v Lovelady; Ex parte Attorney-General [1982] WAR 65; [1981] WASC 329
R v Pearce (1992) 7 WAR 395; [1992] WASC 341
R v Sweet [2021] QDC 21
Rookes v Barnard [1964] AC 1129
Sanders v Snell [1998] 196 CLR 329
Sheridan v Australian Pacific Airports (Melbourne) [2021] VSC 440
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
SOLOMON J:
On 12 April 2022 I heard two applications. One was the plaintiffs' application to determine whether the interim injunctive orders I made in this matter on 11 February 2022 should be extended, varied, or discontinued pending the final trial of the matter. The other was the first plaintiff's (Ms Yap)…
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- AGLC
- Yap v Matic [2022] WASC 181
- Case
- [2022] WASC 181
- Decision Date
CaseChat Overview and Summary
The legal issues the court was required to decide included whether the summons contained all necessary particulars in relation to the substance of the allegation within the four corners of the document, and whether the evidence was capable of establishing a contempt beyond reasonable doubt.
The court found that the summons was deficient as it did not make reference to the first and third allegations of contempt. The court also found that the summons did not comply with the requirements of Order 55 Rule 5 as it referred to an allegation of contempt constituted by an email dated 16 March 2022, when the relevant email was in fact dated 15 March 2022. However, the court did not dismiss the application as it was not satisfied that the evidence was incapable of establishing a contempt beyond reasonable doubt in respect of the email of 16 March 2022. The court decided to hear from the parties as to the further conduct of the application.
The court ordered that the parties appear before the court to be heard as to the further conduct of the application.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Carew-Reid & Ors v Carew Corporation Pty Ltd, Malcolm CJ (with whom Franklyn and Nicholson JJ agreed) observed that (with citations omitted):[I]n my opinion, the effect of O 55 r 5 is that the notice of motion or summons, as the case may be, must contain all necessary particulars in relation to the substance of the allegation within the four corners of the document...In my opinion, it is quite clear from the authorities that any deficiency in the particulars going to the substance of the charge of contempt cannot be made up by resort to affidavit evidence.[83][83] Carew-Reid & Ors v Carew Corporation Pty Ltd (Unreported, WASC, Library No 930254, 23 April 1993)6 - 7; Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (in liq) and Computer Accounting and Tax Pty Ltd (in liq) [No 3] [2021] WASC 447 [20] - [24]. It is plain that the first plaintiff’s summons made no reference to the first and third allegations of contempt. In those circumstances, the application was deficient. It may be possible for leave to be granted to amend the summons to include sufficient information so as to comply with the requirements of O 55 r 5.[84] However, in circumstances where the evidence has not established a breach to the requisite standard, I would not be prepared to entertain an application for leave in respect of the first and third allegations of contempt.[84] R v Pearce (1992) 7 WAR 395; [1992] WASC 341. The second allegation of contempt suffers from a similar, but less manifest deficiency. The summons refers to an allegation of contempt constituted by Mr Matic’s email to Mr Bennett dated 15 March 2022. As is apparent from the discussion of the evidence above, the relevant email was in fact dated 16 March 2022. Accordingly, the summons did not comply with the requirements of O 55 r 5. There is no doubt that the hearing proceeded on the basis that the alleged contempt concerned the email 16 March 2022 and both parties conducted their case on that basis. However, as the summons is deficient, the application as presently constituted cannot succeed. However, I have not at this stage, formed the view that the evidence is incapable of establishing a contempt beyond reasonable doubt in respect of the email of 16 March 2022. In the circumstances, at this point I shall not dismiss the application but I shall hear from the parties as to its further conduct.